What rights do cohabitants have to a partner's intestate estate?

Our most recent blog looked at the topic of intestacy rights for surviving spouses and civil partnerships which has been opened for public view in the latest consultation. The Scottish Government also asked whether current laws were up to date with Scotland’s typical family life and whether the rights of cohabitants and stepchildren are representative of Scotland today. We have set out a quick guide to your rights under current legislation.

As it stands, the law does make provision for cohabitants in intestacy, however, these rights are not automatic. Instead, a cohabitant must make an application to the Court. Under section 29 of the Family Law (Scotland) Act 2006, a cohabitant has the right to make an order for payment out of the deceased’s net intestate estate as well as the transfer of the deceased cohabitant’s property (heritable or moveable), provided there is no will within six months from the date of death. If the deceased left a will, however, cohabitants have no rights.

The Commission highlighted that Section 29 of the 2006 Act has been the subject of much criticism in the last decade as it did not seem to represent the mass of cohabitating couples that currently exist in Scotland.

The latest Census data from 2011 reported 1.5 million families living in households in Scotland, and of these, 16 per cent (237,000) were cohabiting couple families.

Eight per cent (26,000) of married couple families and 29 per cent (26,000) of cohabitating couple families were also recorded as being families with dependent children. For cohabiting couple families, step-families made up 24 per cent of families with one dependent child, 31 per cent of families with two dependent children and 46 per cent of families with three or more dependent children. Cohabitating couples headed almost half of all stepfamilies in Scotland (46 per cent). In spite of this, current legislation dictates that stepchildren have no legal rights to inheritance unless their stepparents have formally adopted them.

It is thought that this number will have soared in the past eight years, with cohabitating couples expected to make up a much larger percentage of families. Ash Denham, Community safety minister, urges the public to respond to the consultation to get a fair and representative conclusion of the proposals. Ms Denham concluded:

“The make-up of families in Scotland is vastly different today than it was when these laws were passed over half a century ago, including significantly more families made up of cohabiting couples and an increased number of step-families.”